UPC Update

The Netherlands ratified the Agreement on a Unified Patent Court (UPC) on 14 September. This now brings to 11 the number of countries who have ratified the UPC Agreement. In order for the UPC Agreement to come into effect, it is necessary for 13 countries to ratify the Agreement, including France, Germany and the UK. As France have already deposited their instruments of ratification, this means that responsibility for triggering the UPC Agreement is now effectively with Germany and the UK.

If and when it comes into force, the UPC Agreement will create the Unitary patent, which will provide a single intellectual property right across many, but not all, EU member states, as an addition to, but not a replacement for, the existing European patent application procedure. At the same time, a Unified Patent Court will be established which will have jurisdiction over European and Unitary patents, including existing European patents, although there will be a transitional period of at least 7 year during which patent owners will be able to opt European patents out of the jurisdiction of this Court.

The UPC Agreement remains threatened by the proposed exit of the UK from the European Union. It remains unclear whether the UPC Agreement may never come into force, or might proceed without the UK, or whether a political and legal way can be found to include the UK even if the UK leaves the European Union. Further comments on the implication of the forthcoming departure of the UK from the European Union are discussed in our article here.